Monday, February 22, 2021

Child Porn And Moral Turpitude

The District of Columbia Board on Professional Responsibility concludes that a lawyer convicted of distribution of child pornography had not committed a crime of moral turpitude per se but nonetheless should be disbarred without a hearing.

This result flows from a new board rule that I applaud as set forth below. 

The Court has not yet determined whether distribution of child pornography is a crime of moral turpitude per se. Although the very name of the crime suggests a foregone conclusion that distributing child pornography is a crime of moral turpitude per se, when we undertake the analysis to make such a determination – that is, would the conduct of the least culpable offender of this crime be base, vile or depraved – we conclude that it is not a crime of moral turpitude per se. Specifically, the least culpable offender subject to conviction for distributing child pornography is a participant in lawful sexual relations with a partner aged under eighteen, who then shares images of those lawful sexual relations only with his or her partner. We conclude that given this scenario which is “the most benign conduct punishable under the statute” this crime is not one of moral turpitude per se because the least culpable offender’s conduct is not base, vile or depraved, and thus, the distribution of child pornography prohibited by 18 U.S.C. § 2252(a)(2) is not a crime of moral turpitude per se. See In re Shorter, 570 A.2d 760, 765 (D.C. 1990) (per curiam); In re Squillacote, 790 A.2d 514, 517 (D.C. 2002) (per curiam) (appended Board Report).

However, Disciplinary Counsel has moved for summary adjudication of the moral turpitude issue pursuant to recently-enacted Board Rule 10.2. We agree with Disciplinary Counsel that the facts Respondent admitted in his guilty plea establish by clear and convincing evidence that Respondent’s conduct involved moral turpitude, and thus we recommend that Respondent be disbarred.

A recent change in board rules changes the result in such cases

Prior to recent amendments to the Board Rules, following our conclusion that the statute at issue did not involve moral turpitude per se, we would have referred the matter to a Hearing Committee to determine if the conduct underlying the respondent’s offense involves moral turpitude within the meaning of D.C. Code Section 11-2503(a) “on the facts.

Because

In a significant number of cases referred to the Board under Rule XI, Section 10, the question of moral turpitude per se, i.e., whether a hypothetical “least culpable offender” committed a crime of moral turpitude, is a difficult one, while the undisputed record clearly shows a crime of moral turpitude on the undisputed facts

An excellent example of the need for this rule is discussed here.

When the board adopts a rule promoting efficiency, it is fulfilling its mission of public protection and allowing limited resources to be focused elsewhere.

The undisputed facts

We have reviewed the record in the light most favorable to Respondent, and have determined that there are no material issues in dispute. The facts admitted by Respondent show that he intentionally shared approximately 100 images of child pornography on a social networking service, totaling approximately 230 megabytes of files. ODC Statement, Statement of Facts at 3. These images were predominantly of pre-pubescent females with their genitalia exposed in a sexually explicit manner. Id. at 3-4 (including
descriptions of representative images). Respondent communicated, either by typing messages or using a microphone or headphones, with other users of a social networking site. In response to posts of child pornography, Respondent and other users discussed the desired sex acts they wished to perform with the children depicted. Id. at 4. Respondent created a personal space on a social networking site where he hosted at least three discussions with other users about mutual masturbation while jointly viewing images of teen-aged or younger children. Id. at 4-5.

The criminal plea was the subject of a press release of the United States Attorney for the District of Columbia

  Moir was chief of staff for the D.C. Mayor’s Office of Legal Counsel at the time of the offense, though there is no evidence that he used Government property to commit the offense or that his role had anything to do with the offense. 

 According to the Government’s evidence, beginning on or about October 10, 2018, Moir uploaded multiple images depicting child pornography to a social networking site in order to share and discuss these images with other users. He used multiple accounts to upload and share child pornography and did so on multiple occasions from October 2018 to January 2019. Images that Moir uploaded from at least one account were flagged as child pornography by the social networking site and sent to the National Center for Missing and Exploited Children for review. These images were then sent to the FBI, which traced them back to devices used by Moir.

Board member Margaret Cassidy authored the opinion. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/02/the-district-of-columbia-board-on-professional-responsibility-the-court-has-not-yet-determined-whether-distribution-of-child.html

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